“We’ll need to hire a jury consultant, of course,” said Dale, looking over steepled fingers.
Frank frowned. “Oh.”
“You don’t sound enthusiastic.”
“I—no, we’ve got to do whatever is necessary. It’s just that tailoring a jury to favor our side…well, it seems to undermine the whole concept of a fair, impartial jury.”
“That’s right.”
Frank’s eyebrows went up. “You agree with me?”
“Certainly. You ever read To Kill a Mockingbird?”
“No. Saw the movie, though.”
Dale nodded. “One of the few really good film adaptations of a novel. In both the book and the movie, Atticus Finch gives a speech to the jury about how the jury system isn’t just an abstract ideal. ‘I’m no idealist to believe firmly in the integrity of the courts and our jury system—that is no ideal to me, it is a living, working reality.’ Well, you know what happened in To Kill a Mockingbird: the all-white, all-male jury convicted a black man of a crime he was physically incapable of committing. I’ve been checking up on you, Frank; you’re an idealist, an Atticus Finch. But I’m afraid a lifetime in this nation’s courts has taken the rose tint out of my eyeglasses; I don’t believe in the integrity of the courts or the jury system. If you put an innocent person in front of the wrong jury, they’ll find him guilty. Still, it’s the system we’re stuck with, and we owe it to Hask to try to sculpt a jury that will at least give him a chance.”
“Still…” said Frank.
“You can be certain the prosecution is going to be trying to shape the jury to favor their side. Believe me, Frank, in a major case, it’s tantamount to malpractice not to use a jury consultant.” Dale paused for a moment. “In fact, there’s an old joke lawyers tell. In England, the trial begins once jury selection is over. Here in the States, once jury selection is over, so’s the trial.”
“Okay, okay. So, what do we look for?”
“That, son, is indeed the question. There are many rules of thumb.” Dale rose from his chair, which seemed to sigh in relief as he got off it, and moved over to one of the floor-to-ceiling bookcases. He searched for a moment, then plucked a book off the shelf. Frank could see its title: The Art of Selecting a Jury. Dale flipped it open, and read a passage, apparently at random. “‘Women are often prejudiced against other women they envy, for example those who are more attractive.’”
Frank rolled his eyes. “Good grief! How old is that book?”
Dale turned to the copyright page. “Not very. It was published in 1988—and the author is a superior-court judge right here in L.A. County. But you’re correct: It’s all prejudice and stereotypes.” He closed the book and looked at Frank. “For instance, prosecutors love northern Europeans—Germans, Brits, and especially Scandinavians. Real law-and-order types, see? The defense normally desires blacks, Hispanics, Natives, southern Europeans—cultures that are less likely to believe the authorities are always right. If you’ve got nothing else to go on, the prosecution will select jurors who are wearing gray—conservative, see? And the defense will select jurors who are wearing red—liberals.”
“Okay, but—wait a minute! Wait a minute! Isn’t Hask entitled to a jury of his peers? Obviously, his peers are Tosoks, and there are no disinterested Tosoks available—so maybe we can get this whole silliness set aside right now.”
Dale smiled indulgently. “Although many Americans think they’re entitled to a jury of peers, that’s simply not true; that’s a provision of British common law, not the U.S. Constitution. The Sixth Amendment simply provides for ‘an impartial jury of the State and district wherein the crime shall have been committed.’ It doesn’t say a blessed thing about peers. In fact, consider the Simpson trial again: O.J.’s peers would be award-winning athletes, or perhaps mediocre actors, or commercial pitchmen, or millionaires, or those in interracial marriages—but every single person who fit any of those categories was excluded from sitting on the Simpson jury. No, Hask must face a human jury—a jury of beings as alien to him as he is to us. Still, as his defense counsel, I owe it to him to try to craft a jury that will be sympathetic to his case.”
Frank sighed. “All right, all right. How much does a jury consultant cost?”
“The average fee is a hundred and fifty dollars per hour—although I tend to use people who charge at the high end of the scale. Total fees in a big case like this one can range from around ten grand to a quarter of a mil.”
Frank frowned again. “I told you I don’t have access to any funds.”
“I’ll take care of it,” said Rice.
“Thank you.” A pause. “But what you were saying before—I mean, isn’t it illegal to discriminate in jury selection on the basis of race or gender?”
Dale nodded. “Of course; the Supreme Court has confirmed that. Batson v. Kentucky, among others. But all that means is if you don’t want any blacks on the jury, you find some other reason to get rid of them. For instance, you see a black gentleman in the jury pool, and you want grounds to excuse him, ask him if he’s ever had reason to distrust the police. Of course he’s going to say yes, and—presto!—he’s off the jury, without race ever being mentioned. The point is that with the right jury, it’s possible to get someone off even if they committed the crime—”
“Like O.J.”
“No, not like O.J.,” said Dale. “We’ve been down that road before. But consider the case of Lorena Bobbitt—there was zero doubt that she’d cut off her husband’s penis. Or California v. Powell: there was zero doubt that those officers had beat Rodney King within an inch of his life—the whole thing was caught on videotape. Still, in both cases, the undisputed perpetrators of the crimes were acquitted by juries.”
Frank nodded slowly. “So in this case we want bright people, people who can follow a scientific argument?”
“I don’t know about that. The standard advice is if you’re defending a guilty party—which, my friend, despite your wide-eyed optimism, we might indeed be doing—then you want a dull-witted jury. Bunch of rubes who won’t see through the tricks you’re pulling. That means we’re off to a good start right away. The jury pool is always skewed toward the poorly educated and the unemployed. A bright person can usually find a good reason to get out of jury duty.” Dale paused. “You know why the DNA evidence failed in the Simpson criminal case? Because there were conflicting experts. You’ve got one side saying one thing, the other side saying something else, and the uneducated jury says, well, if these experts can’t figure it out, then how can we? And so they simply ignore that whole line of evidence, and make their decision based on other considerations.”
“Okay, so who do we want? Space buffs?”
“I wish. But you can bet the prosecution will get those eliminated.”
“Star Trek fans? Science-fiction fans?”
“They’d probably be good, but, again, too obvious—the other side will strike them.”
“People who think they’ve seen a UFO?”
“No—too unpredictable. Could be crazy, and the last thing you want on the jury is a crazy person. No way to guess what they’ll do.”
“Okay. So who don’t we want on the jury?”
“The most important thing to watch out for is the ideologue—a person who wants to be on the jury to push for a particular verdict, no matter what. You find them a lot in abortion cases, civil-rights cases, and so on. Such people can be really crafty—they know exactly what to say and what not to say to get on the jury, then, once there, they hang the jury. We’ll do our best to weed them out during voir dire, but in a case like this, we’ve got to be particularly careful not to get some aliens-are-devils nut impaneled…”
The intercom on District Attorney Ajax’s desk buzzed. “Reverend Oren Brisbee is here to see you, sir.”
Ajax rolled his eyes. “All right. Send him in.”
The door to Ajax’s office opened, and in came a thin black man of about sixty, with a fringe of white hair that, when he tipped his head d
own, looked like a halo.
“Mr. Ajax,” said Reverend Brisbee. “How good of you to see me.”
“I always have time for the pillars of the community, Reverend.”
“Especially when about to announce a gubernatorial challenge,” said Brisbee. His voice was a decibel or two too loud; Brisbee always spoke as if trying to reach the last pew, even when only one other person was present.
Ajax spread his arms. “My door has always been open to you.”
“And let us hope, Mr. Ajax, that for a good long time to come you will always have a public door…either here in L.A., or up in Sacramento.”
Ajax struggled not to sigh audibly. “What did you want to see me about, Reverend?”
“The murder of Cletus Calhoun.”
“A tragedy,” said Ajax. “But we will ensure that justice is done.”
“Will you, now?” The words actually echoed slightly off of the office window.
Ajax felt the beginnings of heartburn. He reached into his desk drawer and took out a roll of Rolaids. “Of course. We’ve already had some pressure from Washington to drop the case—and I’m told Washington has been pressured by other nations.” He forced a chuckle. “But if cases were dropped whenever Washington wanted them to be, Richard Nixon would have finished his term of office, Bob Packwood would still be in the Senate, and no one would ever have heard of Ollie North.”
“I admire your stick-to-itiveness, Mr. Ajax. But tell me, sir, will you have the backbone to stick to it until the bitter end?”
Ajax narrowed his eyes. “What do you mean?”
“I mean, good sir, that this fine state of California recognizes the right of the people to do collectively that which individually we must not.” Brisbee pointed a finger directly at Ajax. “We have capital punishment here, sir, and this is a capital crime. Will you have the moral courage to push for the death penalty in this case?”
The DA spread his arms. “Well, surely there are extenuating circumstances, Reverend. And although I won’t bow to political pressure, I do accept that there are some gigantic issues at stake here.”
“There are indeed. Would you like to know which issue is foremost in my mind, sir? Foremost in my mind is the fact that during your term as district attorney, you have called for the death penalty in sixty-four percent of the first-degree murder cases involving black defendants, whereas you’ve only asked for it in twenty-one percent of the cases involving white defendants.”
“Those statistics don’t tell the whole story, Reverend. You have to look at the severity of the individual crimes.”
“And no crime is more severe than killing a white man, is it? In cases when a black person is accused of killing a white, you have sought execution eighty-six percent of the time. Well, good-ole-boy Cletus Calhoun was as white as they come, Mr. Ajax. If I had been the one to butcher him like a hog, sir, you’d be looking to fry my black ass.”
“Reverend, I hardly think—”
“That, sir, is apparent. In your gubernatorial campaign, you can be sure the African-American constituency will be asking why you would execute a black man for killing a white man, but would demur from putting down an alien dog.”
“It’s more complex than that.”
“Is it, sir? If you don’t call for the death penalty in this case, what message are you sending? That this Tosok is more valuable than a black human being? That this alien traveler, with his advanced civilization and obvious education and great intelligence, is worthy of being spared, but a young Negro, victim of cruel poverty and racism, should be sent to the electric chair?”
“We are carefully weighing all the factors in deciding what penalty to seek, Reverend.”
“See that you do, Mr. Ajax. See that you do. Because if you do not, sir, you will feel the wrath of a nation oppressed. We carry within each of us the divine spark of a soul, and we will not be treated as inferior, disposable products while you go easy on some soulless creature that has committed the most brutal killing and mutilation this city has ever seen.”
Mary-Margaret Thompson was Dale Rice’s usual jury consultant. She was a trim, birdlike brunette, who perched herself on the corner of Dale’s wide desk. She looked at Frank, who was once again swimming in the giant easy chair. “There are several phases to the process, Dr. Nobilio. First, there are the jury-selection surveys. For a normal case, they call in about fifty prospective jurors. For the Simpson criminal case, they called in twenty times that number—a thousand prospects. You can bet they’re going to call in a similar amount this time. We’ll get to consult with the prosecution on the survey that these people will have to fill out. That’s step one—coming up with the right questions.
“Step two is voir dire—that’s where the lawyers get to question the prospective jurors one-on-one. Now, we can end the consulting process there, but I suggest we go all the way. Once the jury is impaneled, we should set up a shadow jury—a group of people who are as closely matched as possible demographically to our real jury. We then monitor them throughout the trial; that way we can tell which arguments are working, which ones aren’t, and how they’re leaning day by day.”
“A shadow jury,” repeated Frank. “What does that cost?”
“We usually pay the shadow jurors seventy dollars apiece each day—which is ten times what the real jurors are making.” A pause. “Now, the most important thing is to get someone on the panel who will serve as our virtual defendant—someone who will identify strongly with the defendant, taking on the role of Hask and presenting his viewpoint during deliberations. Of course, finding someone to do that is going to be rather tricky in this case…”
The squad room was bustling with activity—a blood-splattered black man being booked at one desk; two hookers, one white, one Asian, being booked at another; and three black gang members, maybe fourteen or fifteen, waiting to be processed. Dale looked at them, and shook his head. They looked back at him, at his three-thousand-dollar suit, at his gold cuff links and the chain for his gold pocket watch. “Oreo,” said one to his homey as Dale walked by. Dale bristled, but didn’t turn around. He continued along until he came to the door he was looking for. An engraved sign on the door said “J. Perez.” Taped below it were a picture of a bale of hay, and a picture of an old white man holding a plush-toy Cat in the Hat. “Hay” “Seuss”—Perez’s first name.
Oreo my ass, thought Dale. Just call me Uncle Rebus.
He knocked on the door. Perez barked out something, and Dale entered.
“Counselor,” said Perez, not rising. “Haven’t seen you for a while.”
“Lieutenant.” The stiff, formal word carried years of history behind it.
Perez jerked a thumb in the direction of the squad room. “I didn’t think any of those lowlifes could afford you.”
“My client is Hask.”
Perez nodded. “So I’d heard. What’s he paying you in? Gold-pressed latinum?”
“What?”
“Nothing.” Perez paused. “You missed out on being part of Simpson’s Dream Team, so now you’ve replaced the trial of the century with the trial of the Centauri.” The detective chuckled at his own wit. “It’s too bad, counselor. You had a pretty good winning streak going there.”
“What makes you think I’m not going to win this time?”
“Are you kidding? Your buddy Mr. Spock offed one of TV’s most popular personalities. This is Simpson in reverse: a celebrity stiff and a no-name defendant.”
“Hask is famous as hell.”
“Hask is going to hell.”
Rice sighed. “Are you even looking for other suspects?”
“Certainly. But there are not many possibilities. There were only twenty-five people, including the seven Tosoks, who had access to the USC residence that night. But of the humans, the biggest question remains motive. Who would kill Calhoun? And who would kill him in that manner?”
“As you doubtless know, it could be someone wanting to frame the Tosoks—to incite ill will toward them. And
if that’s the case, it could be a conspiracy involving two or more people—meaning the fact that someone has someone else as an alibi isn’t worth anything.”
“A conspiracy!”
“Why not? I should think you’d be glad that somebody is proposing a conspiracy outside of the LAPD.”
Perez fixed Dale with a withering stare. “An eminent group of scientists hardly seems likely to frame an alien for murder.”
Dale had gotten tired of waiting to be offered a seat. He took one—a metal-framed job, uncomfortably small for him; it groaned in protest under his weight. “Don’t be so sure. Academic jealousy is the greenest of all. These gentlemen fight for ever-declining grant dollars and toil in obscurity, while some fellow from Pigeon Forge, Tennessee, makes millions and gets to hobnob with Jay Leno. They figure nobody’s going to be crazy enough to arrest an alien—they didn’t count on Monty Ajax’s lust for power. It would be a perfect crime; they’d assume Washington would get it swept under the rug…”
“Which is precisely what they’ve been trying to do, apparently,” said Perez. “No, counselor, we’ve got our—we’ve got our creature. It had to be a Tosok.”
Dale’s turn to fix a withering stare. “I would have thought, Lieutenant Perez, that you would have felt the sting of that kind of thinking enough in your own life not to apply it here. It has to be a Tosok. It must be a Latino. It was some black guy—and, hey, that guy over there is black, so it must be him.”